A Wrap-Up Of The Brexit Case

One of the most anticipated trials of 2016 has concluded after three days of hearings. Some of the best legal minds in the country, including a swathe of Immigration lawyers and members of the public have listened to the case put forward against the UK government triggering Article 50 without the consent and authorisation of Parliament.

During the application for judicial review of the government's intended use of prerogative powers to kick-start Brexit, the 23 lawyers on either side of the argument covered a huge amount of ground. In fact, the official transcript of the hearing is 582 pages long.

The players

Fund manager, Gina Miller and a number of others, including hairdresser Deir Dos Santos and Grahame Pigney, a France-based expatriate who used crowdfunding from more than 4,000 people to pay for lawyers, brought the case which questions whether Mrs May has powers to trigger Article 50 without a vote from MPs. Much depends on its outcome, if the judicial review is allowed and succeeds, Parliament could block the Prime Minister from exiting the EU.

The Government has appointed the Solicitor General, Robert Buckland MP to lead the case. On Monday he told the court, “This is not a narrow legal challenge … It seeks to invalidate the decision already taken to withdraw from the EU.

“Making and unmaking treaties are an established use of royal prerogative powers. The use of prerogative powers [to trigger Brexit] was wholly within the expectation of parliament.

“The question is, has parliament acted to limit the availability of the royal prerogative powers? The answer, we say, is no.

“There’s nothing expressed in legislation that [shows] parliament has attempted to circumscribe the powers to make treaties. Parliament has conspicuously refused to legislate on withdrawing from the EU despite many opportunities if it had so wanted.”

A large number of people will be anxiously awaiting the outcome of this case, none more so than the 3.3 million or so EU nationals currently living in the UK who are concerned about their residency status. Many are making or have made an application for a permanent residence Card with the best Immigration solicitors in their area in order to confirm their right to remain in the UK after Article 50 is triggered.

The issues

The UK government says it has the right to trigger Article 50 without a vote of Parliament because of the so-called royal prerogative, whereby executive authority is given to ministers so they can govern on the monarch’s behalf.

Lawyers representing the government also say Mrs May has a responsibility to carry out the wishes of the people as expressed in the June vote.

But the claimants argue that triggering Article 50 without prior parliamentary consent would effectively override a European Communities Act 1972 which enshrines European law in the UK and which the claimants say ensures rights that can only be removed by Parliament.

“The heart of this case…is that Parliament has undoubtedly created a series of absolutely fundamental rights, and they cannot be taken away by executive action,” David Pannick, a leading Human Rights lawyer who represents one of the plaintiffs, told the court.

Government lawyers leave judges “baffled”

On the final day of the hearing, Lord Chief Justice, Lord Thomas, said he was confused by the case made by Jason Coppel QC, one of the lawyers for the Government.

According to a report in the Daily Mail, in the final hearing, Mr Coppel argued invoking Article 50 without a vote was right and proper because the Government was not seeking to amend EU treaties - something which would require a Commons vote.

This caused Lord Thomas to remark, “I am sorry; I am slightly baffled. I don't understand why the content of these rights are not controlled by Parliament.”

Mr Coppel argued that the case against the Government was that withdrawing from the EU amended the rights - and he insisted this was not correct. He said invoking Article 50 - which contains the proceeding governing the leaving of the EU - did not in itself do anything to the rights contained in EU treaties.

By contrast, the court heard later that any new treaty agreement with the European Union following Brexit would 'very likely' have to be ratified by Parliament.

In summary

The judges are now taking time to consider their decision. However, given the importance of the case, it is likely that it will be sent to the Supreme Court. A rather ironic situation may also eventuate if further clarification on the matter is required. The Supreme Court may refer some issues to the European Court of Justice for clarification.

We will keep you updated.

OTS Solicitors is one of the most respected Immigration law firms in London. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you in applying for a permanent residence Card and/or British Citizenship and answer any question you may have on your right to remain in the UK following Brexit.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.